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Category: Civil

My father died the morning of December 1. He would have been 95 this Valentine’s Day. His poor health, unusual for him, to some extent prepared us for his death over the past six months. It’s all grief, whether it came before he died or whether it comes now.

The first time I missed him was that afternoon. I was talking on the phone to an old friend of his, and I wanted to repeat to him something she said, to say, “Hey, Pop!” The family was together; it was strange that he wasn’t there.

My father, 1924 – 2018

“Just tell him!” his friend suggested. She is the Episcopal deacon who would officiate at his memorial service the following week.

So I did, cupping the phone a bit. We laughed.

It’s funny what processes the emotions. I was touched by the viral cartoon of George H.W. Bush’s fighter plane landing in heaven and his reunion there with Barbara and Robin, who had predeceased him. I’ve tried to describe the cartoon to different people, and I can’t get through it.

Bush and my father were born the same year (the former on my birthday), and they died within hours of each other. While the country was mourning Bush, we were mourning my father. I texted to my family what I imagined to be Bush’s last words: “Warren Stephens survives.”

They were a lot alike — public men with reputations for integrity. My father’s public, of course, was local, his beloved Newport News, where he spent his entire life outside of college, the military, and his last year with my mother near my siblings in a Richmond retirement community. (Here’s the story of his death in the local paper.)

This morning I wept, too, through Mary McCarthy‘s postface to Hannah Arendt’s The Life of the Mind. Arendt had finished the second section (“Willing”) of this trilogy a week before she suddenly died. Arendt had finished “Thinking” the year before, and her friends discovered a sheet of paper in her typewriter containing only the word “Judging” followed by two epigraphs after she died. I wonder what the epigraphs were, but McCarthy keeps them between Arendt and herself.

There’s a lot McCarthy doesn’t say, which makes her postface, like the process of grief, so interesting. She says that she had worked with Arendt to edit several of her most well-known works. When she collaborated with Arendt as her editor, they got to know each other’s minds. Arendt thought that McCarthy’s Catholicism, which McCarthy had disowned, had adequately prepared her for philosophy. She saw McCarthy as a perfectionist — I assume most authors understand their editors as such — and McCarthy knew she could outlast Arendt if they disagreed. “‘You fix it,’ she would say, finally, starting to cover a yawn.”

She describes how her editing felt like collaboration while Arendt was alive. Arendt was going through her “Englishing,” and McCarthy for her part learned enough German to better understand Arendt’s thought expressed in her syntax. German allowed McCarthy “to make out the original structure like a distant mountainous outline behind her English phrasing.” From then on, McCarthy would put Arendt’s prose “into German, where they became clear, and then do them back into English.”

After Arendt’s death, the editing got harder, of course. Death proved more formidable than a foreign tongue. McCarthy still engaged in dialogues with Arendt, “verging sometimes, as in life, on debate. Though in life it never came to that, now I reproach her, and vice versa.” McCarthy even describes her nightmares — lost or (worse) newly found manuscripts — missing Arendt or uncovered Arendt — that throw over everything. There is something here of the danger and frankness and the feeling of internal process that I found, as a teenager, in the talk among the dead in Our Town.

Why isn’t grief, when it comes, as frank as the grave? Maybe Arendt can help. She liked to distinguish between the inside and the outside of the human body, and she lumped our “passions and emotions” with the likes of or livers and kidneys. Compare our emotions’ “monotonous sameness” with what they lead to, i.e., the “enormous variety and richness of overt human conduct,” she suggested in “Thinking.” Grief, I’ve read, has predictable stages, rather like digestion. But grief, like a Program Era writer who shows without telling, also expresses itself with the outer life’s variety and richness.

Maybe grief’s dekes and indirection are invitations from the dead. Hey, Pop.

Mary McCarthy in the postface to Hannah Arendt’s The Life of the Mind↩

So far I’m finding The Life of the Mind to be a philosophical defense of some of Hannah Arendt’s big political science concepts. Her “it-seems-to-me,” for instance, reappears here, but not strictly as a celebration of plurality as it appears in, say, Between Past and Future. In The Life of the Mind, it-seems-to-me becomes the glory of “the inter-subjectivity of the world,” a world of appearances in which one’s solipsistic five senses are “remedied” by a sixth sense — common sense — which brings one’s observations into “a common world shared by others.”

I think Arendt’s “common world” is her beloved Greek polis, and so her public space in her political books becomes, in The Life of the Mind, all of what we hold in common as humans. The Life of the Mind is the last book Arendt ever wrote, and I find in it the fullest exploration of the problem she addressed when she first met us — totalitarianism. Here, and now with references to Kant and Merleau-Ponty, is the common sense that, she warned in The Origins of Totalitarianism, totalitarianism aims to destroy:

[The masses] do not believe in anything visible, in the reality of their own experience; they do not trust their eyes and ears but only their imaginations, with may be caught by anything that is at one universal and consistent in itself. What convinces masses are not facts, and not even invented facts, but only the consistency of the system of which they are presumably part. . . . The revolt of the masses against “realism,” common sense, and all “the plausibility’s of the world” (Burke) was the result of their atomization, of their loss of social status along with which they lost the whole sector of communal relationship in whose framework common sense makes sense.

Arendt, Hannah. The Origins of Totalitarianism. Schocken Books, 1951.

Forty years removed from her incarceration in Nazi Germany, Arendt does not mention totalitarianism in The Life of the Mind. Her final decade, the 1970s, is proving to be a high mark between two eras in which common sense, and “the whole sector of communal relationship in whose framework common sense makes sense,” are under deliberate attack. Arendt deserves the era of relative peace in which she last wrote.

• • •

I dipped in and out of lots of books this year. But here are books and Great Courses series that I read and/or listened to from cover to cover in 2018. I list them in the order I finished them. A hyperlinked title leads to a post discussing it.

People die; maybe that’s why the world never seems to get out of first gear. A friend of mine, the older he gets, finds life’s meaning more and more in the coming millennium of Christ. We’ll return with Him and have the time, this time, to get things done.

To those like him, who plot their rest in growth, speaks the Book of Common Prayer: “. . . we pray that, having opened to him the gates of larger life, you will receive him more and more into your joyful service . . .” For “your faithful servant N.,” what could heaven be but greater service? What is heaven but one’s twenties – the deeds with death a thousand years away?

According to Edward Coke, Thomas Littleton’s Tenures is “the most perfect and absolute Worke that euer was written in any humane Science.” But as good as it is, “Certain it is that when a great learned man (who is long in the making) dyeth, much learning dyeth with him.” Coke named his own writings Institutes “because my desire is, they should institute, and instruct the studious, and guid him in a readie way to the knowledge of the national Lawes of England.”

Coke’s contemporary, John Donne, said that “Any man’s death diminishes me”; to “instruct the studious” is a fittingly small consolation.

In 1831, two young Frenchmen visited America, charged by their government with investigating the American prison system. They finished in nine months. They also spent those months months investigating “all the mechanisms of this vast American society,” as the leader of the pair, Alexis de Tocqueville, put it (Tocqueville vi). The result is Democracy in America, a book that implicitly critiques the French government and society of Tocqueville’s time through its largely favorable review of American government and society.

One American institution that struck the twenty-five-year-old de Tocqueville as quite different from anything in Europe was the United States Supreme Court. He was amazed: the Supreme Court can tell the rest of the American government what to do. By contrast, all European governments, no matter their form, show “the greatest repugnance to allow the cases to which it was itself a party to be decided by the ordinary course of justice” (123). He pointed out that, unlike European tribunals, when the Supreme Court hears cases between, say, New York and Ohio, it “summons sovereign powers to its bar.” And although Tocqueville didn’t mention it, he might have added that the 1803 case of Marbury v. Madison settled early on that the Supreme Court has the authority to declare acts of Congress invalid if it finds that they are without Constitutional basis. In Tocqueville’s time, this kind of authority in the hands of an independent judiciary was unknown in other modern societies.

Tocqueville was so taken with the Supreme Court’s role that he felt that its reputation and preservation were more important than that of the other two federal branches of government, the presidency and Congress. Yet, more than the other two branches, the court was also more subject to injury from popular disdain. The justices are the “all-powerful guardians of a people which respects law; but they would be impotent against popular neglect or popular contempt,” he claimed, pointing out that the Supreme Court must act consistently with the nation’s understanding of the rule of law (124). We, on the other hand, often see our Supreme Court as the least important of the three branches and, because of the justices’ lifetime appointments, the least subject to adverse popular opinion.

We have some good authority to support our view. Tocqueville’s equally famous countryman, the political philosopher Montesquieu who lived a century before Tocqueville, thought courts were inherently powerless. Montesquieu influenced the framers of the American Constitution by updating the Roman notion of separation of powers, giving us the executive, judicial, and bicameral legislative branches we recognize today. In so doing, however, Montesquieu claimed that the the judicial branch is “in some measure next to nothing” (Huntington 392). After all, nobody (we would say today) comes to a game to see the umps.

Which Frenchman is right? Is the United States Supreme Court the most or least important branch of American government?

In exploring this question, it may be helpful to make two distinctions. The first is between power and function, and the second is between power and authority. Clarifying those three terms may suggest how the framers understood sovereignty and the rule of law as well as the Supreme Court’s role in maintaining this understanding.

We generally think of the Constitution as balancing three primary governmental functions. The Constitution separates functions, however, only to the extent that such a balance of functions achieves the document’s greater goal — a separation and balance of powers. The Constitution is designed to keep sovereignty away from any single part of government, whether it be a branch of the federal government or whether it be the states vis-a-vis the federal government. For instance, as American political scientist Samuel P. Huntington pointed out, “the judicial power to declare what law is became the mixed judicial-legislative power to tell the legislature what the law cannot be” (393 – 394). The Supreme Court also has a quasi-executive role since it can pass on the constitutionality of many executive decisions, such as the suspension of habeas corpus or the issuance of executive orders. The Constitution gives the court more than a judicial function in order to balance some of the powers the Constitution acknowledges.

This sharing of functions to create a true balance of power isn’t a modern invention. In fact, Huntington argued that the American government’s separation of powers is a holdover from the late medieval period before the rule of law began to be replaced by the rule of men. Beginning in the seventeenth century, the nations of continental Europe placed their sovereignty in kings while the English Civil Wars and Glorious Revolution eventually caused sovereignty to be placed in Parliament. The American colonists, however, kept to Tudor-era notions of the supremacy of common and natural law. As British historian Albert Pollard pointed out, “Americans instinctively revolted against the doctrine of the sovereignty of the State” (Huntington 388). At the time of the American Revolution, Americans were still resisting the modern “tendencies toward the substitution of sovereignty for law,” as Huntington put it (386). Americans kept Elizabethan notions of law, just as the the residents of the Chesapeake Bay’s Tangier Island retain certain Elizabethan speech patterns.

It would be helpful to define both sovereignty and the rule of law. Sovereignty, the jurist Jean Bodin says, is the notion that there is “a supreme power over citizens and subjects, unrestrained by law” (Huntington 384). Sovereignty, then, is the assertion of power over others, a concept that political theorist Hannah Arendt said hinders freedom: “If men wish to be free, it is precisely sovereignty they must renounce” (Arendt, Between, 163). The rule of law, however, is the opposite of sovereignty. The rule of law is not to be confused with “law and order”; indeed, the significance of rule of law is in its scope and not its force or strength. Political Theorist Francis Fukuyama defines the rule of law as “rules that are binding even on the most politically powerful actors in a given society” (11). In other words, the scope of law must bind even kings and Parliaments. The American founders held to notions of natural law — law that is discovered by man but not generated by him — precisely to counter modern notions of sovereignty.

This idea of rule of law as exercising something like sovereignty points to the distinction alluded to earlier between power and authority. Power includes coercion, but Arendt said that authority cannot be equated with or rely on coercion — or, for that matter, even persuasion. In fact, she said that “practically as well as theoretically, we are no longer in a position to know what authority really is” (Arendt, Between, 92 – 93). She described where the political idea of authority came from — the founding of Rome — and she described also how the Roman Senate, even when it had no power, was consulted by Rome’s powerful rulers for its blessing on legislative or executive measures. The Roman Senate was the guardian of Rome’s founding, and its task was to measure every governmental action against that founding (120 – 122). That gives us some notion of what authority is even if the West no longer generally experiences it, as Arendt suggested.

Where, then, did authority in the West go when Rome fell? The Catholic Church took on the Roman Senate’s role; Arendt was fond of quoting a pope writing to an emperor at the end of the fifth century: “Two are the things by which this world is chiefly ruled: the sacred authority of the Popes and the royal power” (126). This pope-king tandem lasted in the West for over a thousand years, Arendt asserted, but it collapsed during the Reformation and the Scientific Revolution. One can infer this collapse in the preoccupation with governmental legitimacy in the writings of the period’s political thinkers. Political theorist Alexander S. Rosenthal pointed out that Richard Hooker’s question “‘what conditions make the power to rule legitimate?’ became particularly important in the sixteenth and seventeenth centuries” (107). Arendt believed that governments since then have frequently resorted to force — to power — as a tragic means of compensating for their lack of authority.

One modern institution attracted Arendt’s attention because of its authority, however — the American Supreme Court. Its lack of power and its lifetime appointments make it “the true seat of authority in the American Republic” (Arendt, Revolution, 192). She compared the Supreme Court directly with the Roman Senate, pointing out this small distinction: instead of giving political advice, the Supreme Court gives legal interpretations (193). She approved of Woodrow Wilson’s characterization of the court as “‘a kind of Constitutional Assembly in continuous session’” (192). The Supreme Court, then, gives the government and statutes the authority generated by the Declaration of Independence’s signers and the Constitution’s framers at our nation’s founding.

The Supreme Court’s powerlessness and its authority mean, of course, that both Montesquieu and Tocqueville are right. To maintain its authority — and thereby to maintain the entire government’s authority — the Supreme Court must not make mistakes regarding fundamental law that would undermine its standing with the American people. As Tocqueville warned, “If the supreme court is ever composed of imprudent men or bad citizens, the Union may be plunged into anarchy or civil war” (124). He was right: within twenty years of Democracy in America’s publication, the Supreme Court’s infamous Dred Scott decision helped to bring about the American Civil War.

When the Supreme Court adjudicates, it must consider its function as the source of our federal government’s authority. If it fails to rule in accordance with the Constitution and natural law — i.e., in accordance with the rule of law — it will cause a large segment of the American people to lose their trust not only in the judicial branch but in our entire system of government.

When Barack Obama last month came out of his brief retirement, he gave a speech expanding on his famous stump maxim, “Don’t boo. Vote.” His new list of don’ts leading up to “vote” includes “Don’t lose yourself in ironic detachment.” Yet such a loss is one way to understand the Christian gospel. Without it, I wouldn’t vote.

Irony is not cynicism, its lazy first cousin. In the public realm, irony is the essence of justice. The Psalms, the prophets, and the Sermon on the Mount all speak of justice in ironic terms. When Samuel is born, the formerly barren Hannah proclaims that “The bow of the mighty is shattered, but those-who-stumble are girded with strength” (1 Sam. 2:4 Fox). Jesus’ birth leads to similar strains in Mary’s song: “He has deposed the mighty from their thrones and raised the lowly to high places” (Luke 1:52 NAB). Isaac, which means “laughter,” is named when his old, barren mother laughs at the suggestion that she would conceive him. And God himself laughs: “He who is throned in heaven laughs,” we are told, at princes who conspire against him (Psalms 2:1-4 NAB). Reinholt Niebuhr, quoting this verse in The Irony of American History, hears in God’s ironic laughter the possibility of earthly justice.

All of these birth stories – those of Isaac, Moses, Samuel, Jesus, and others – involve ironic justice precisely because every man and woman is a living irony, or as Hannah Arendt puts it, “man is a beginning and a beginner.” The miracle of each person’s birth, Arendt says, challenges the “automatic processes [that] can only spell ruin to human life.”1 Pharaoh, Eli’s sons, and Herod all seek to swallow the future into the present by monopolizing the public world – as it were, by supressing the vote.

Private man wishes only that a state apparatus not impede the private sector, and he asks the state to impartially adjudicate among private concerns like his own. But this utilitarian understanding of justice could – and did – operate in such realms as the Third Reich, which eliminate the public.

Irony is the first step back to a true public square. Its justice doesn’t merely decide between private, atomized disputants. Instead, it recognizes the claims of entire communities (Rowan Williams’s “trade unions, ethnic and cultural groups, co-operative societies, professional guilds . . . and, of course, churches and faith groups”2; Tocqueville’s “political associations”3) to a public life. A state apparatus alive to irony becomes, in Williams’s words, “a reliable and creative ‘broker’ of the concerns of the communities that make it up.”4 This “ironic detachment” leads me to members of groups I don’t belong to that are neglected or misused by cruel and automatic processes.

Irony is the midwife of the gospel’s second birth. I am David, whose righteous indignation against a rich thief leads the prophet Nathan to charge, “You are that man.” I am the Roman Christian warned by Paul: “You that judge do the same thing.” The second birth discovers my sense of justice contorted and privatized. Christ’s invitation echoes the psalmist’s and Hannah’s ironic justice: “He who seeks only himself brings himself to ruin, whereas he who brings himself to nought for me discovers who he is” (Matthew 10:39 NAB). My discovery of myself is only possible by living for another – for Christ both in God and in others. Biblical conversion, therefore, insists on a public world. Or as Walter Brueggemann puts it, “our discernment of God is at the breaking points in human community.”5

The irony is, had I not left home, the Democrats would control Virginia’s lower legislative chamber today. My parents’ district last year was decided by a coin toss following a tie vote, and the toss gave the Republicans their one-seat majority. To round out my claim to abdicated power: I keep up with my home town’s politics, I always vote, and I was inclined to support the Democrat.

Yet the prevalence of such anecdotes does nothing to increase voter participation. Why? People stay home on election day not because their vote won’t decide an election. They stay home because of “automatic processes.” They stay home because their home is their only world.

Looking out my window, I see a temporary sign face down on the traffic island between the east- and westbound traffic. In our suburban town, these islands themselves are signs. If a school bus stops in the opposite direction on a divided street (that is, a street with an island) to pick up children, you don’t stop. If the street isn’t divided, though, you must stop. The island creates a legal fiction: you don’t see the bus’s outstretched stop sign because of the island. The island, I suppose, suggests something about whether drivers along the road are expected to anticipate pedestrians.

There are islands like traffic islands along the Potomac where we live, above the falls. (South of the Potomac, but above the falls.) You’d paddle or sail across the river, portage your boat across the narrow island, and paddle or sail again. And you’d be in Maryland. (“Mainland” Maryland, I suppose, since the the islands themselves, like the river, are in Maryland. Borders are fictions, too, and sometimes they are also invisible.)

Alexis de Tocqueville, my latest live-in author, never associates civilization with civility. Here’s an example of how he uses “civilization” from Democracy in America:

The celebrated communities of antiquity were all founded in the midst of hostile nations, which they were obliged to subjugate before they could flourish in their place. Even the moderns have found, in some parts of South America, vast regions inhabited by a people of inferior civilization, but which occupied and cultivated the soil. To found their new states it was necessary to extirpate or to subdue a numerous population, until civilization has been made to blush for their success.1

I ask for greater civic life, but I’m not asking for greater civilization or even greater civility. I ask that we act, and in acting we challenge our assumptions about public life and our own being. We act, and we discover new thoughts and words commensurate with the act. Our hands and our feet teach us, much as they did when we were young.

Philip Kenicott has a nice piece in today’s Post on the Glenstone Museum’s new facility in Potomac. The Glenstone hopes to make interacting with art more contemplative. In the process of describing how it navigates the museum-as-temple and the museum-as-civic-center tension, Kenicott discusses the slow art movement. The movement considers not only the sign (the art) and the signified (the eternal, the meaning, the feeling, the transcendent, what have you) but also the soul.

Our signs — our means of policing ourselves in our positivistic, malum prohibitum society — rarely involve an interpretant. They don’t rise to the level of malum in se, which would require conscience and a notion of right and wrong that transcends law and even society. Cars move too fast for the moral judgment democracy craves.

After the rally, many traders considered Black Thursday a correction. We think they were wrong: the next week, Black Tuesday started the Great Depression. But was the Great Depression itself a correction?

Locke’s state of nature justifies modern society — discrete individuals who live with one another out of convenience, each maintaining her inalienable independence. Is tribalism a correction of our societal structure? When tribal thinking leads to reduced health care and fewer vaccinations, for instance, is the resulting lower life expectancy a correction?

What do we do when correction is coming? Jesus’ king sees another king coming to fight him with twice his force. He counts the cost and sues for peace. “In the same way,” Jesus concludes, “those of you who do not give up everything you have cannot be my disciples.” Did the king give up everything by suing for peace, or did he give up giving up everything by not fighting?

Perhaps the solar system is, in the long run, a correction of sorts, a short-term contraction between periods of heedless expansion.

Humans associate; it’s part of what makes us human. If we don’t, we’ll begin to see conspiracies, suggests Alexis de Tocqueville, a shrewd observer of not only American democracy but also of humanity:

In countries where associations are free, secret societies are unknown. In America there are numerous factions, but no conspiracies.1

In our atomized society, the television, the Internet, and social media — screens — replace faces. Few of us exercise our right to associate for political and societal ends the way Tocqueville discovered us doing in the early nineteenth century, so we live with conspiracies and rumors of conspiracies. No longer practiced in associational life outside of religion (if that), we assume that when two or more are gathered together, either Jesus or Satan is in the midst.

I assign all Americans but a single book a year, and they must discuss it with their neighbors as part of an effort to reconstitute the local. I don’t think this is too much to ask. (Past assigned works have included Reinhold Niebuhr‘s The Irony of American History, James Baldwin‘s Notes of a Native Son, James Agee and Walker Evans‘s Let Us Now Praise Famous Men, and Hannah Arendt‘s Between Past and Future.) This year’s book is the first new release ever assigned: Timothy Snyder’s The Road to Unfreedom: Russia, Europe, America.

Because Lincoln was there, all of his biographers describe it. Here’s how Stephen Oates’s account starts:

At last Richmond came into view, with columns of smoke billowing up against the sky. When Lincoln stepped onto the docks, followed by a dozen sailors armed with navy carbines, black workers recognized the tall, gaunt man with the stovepipe hat. “Glory!” cried a black woman. “Glory glory!”1

The fall of Richmond is still tough for many to swallow down here. Last month, Corey Stewart won the Republican nomination to unseat Senator Kaine in part by defending the Confederate monuments built in defiance after the fall along Richmond’s Monument Avenue. And my aunt corrected me years ago when I told her of my plans to live in Northern Virginia: I was to say “Upper Virginia.” After Richmond, north was no longer on the Old Dominion’s compass.

We wish to indulge this regional pride, of course, without considering its source: an historicist (i.e., lacking a moral compass) account of the Constitution that gives legal sanction to white supremacy. This attack on the Founders’ natural-law principles didn’t stop with Richmond’s fall; on the contrary, as conservative political theorist Harry Jaffa points out, “if ever there was a nation annihilated politically on the battlefield that nonetheless imposed the yoke of its thought upon its conquerers, it was the Confederacy.”2

It seems that the movement toward moral relativism among American conservative leadership that Jaffa warned of3 is complete, and Washington only awaits its conqueror. Those who never gave up the Lost Cause may not have the satisfaction of watching Jefferson Davis stroll the singed streets of Georgetown and Capitol Hill. But they’ll have something better this fall: the world’s greatest exponent of white fascism, Vladimir Putin, will enter our abject capital in triumph, receiving the hosannahs of his vassal and his congressional supporters.